President and Senate must quickly replace federal judges to vacant posts

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U.S. District Judge James Ware recently retired after 22 years of service. This means that the Northern District of California now has four vacancies in 14 judgeships. The Administrative Office of the U.S. Courts has designated all four as emergencies because of the district’s heavy caseloads.

These openings in 28 percent of all Northern District judgeships undermine the delivery of justice in Northern California. Thus, President Barack Obama must swiftly nominate, and the Senate promptly confirm, judges for the vacancies.

When openings materialize, President Obama has robustly sought advice from Republicans and Democrats. He has proposed nominees of balanced temperament, who are smart, ethical, diligent, independent and diverse vis-á-vis ethnicity, gender and ideology. Northern District Judges Edward Chen and Lucy Koh are two such examples. Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, has expeditiously conducted hearings and votes, sending nominees to the full Senate, where they languish for months. Indeed, on August 3, the Senate recessed without considering 22 well-qualified nominees simply because the GOP refused to vote.

Republicans must cooperate better. The principal bottleneck is the Senate floor. Senator Mitch McConnell (R-Ky.), the Minority Leader, has imposed delays needlessly. Most troubling has been GOP unwillingness to move uncontroversial nominees, inaction that contravenes Senate traditions. When the chamber has eventually voted, it smoothly confirmed many nominees, like Stephanie Rose, who recently secured 89-1 approval.

The four Northern District vacancies are crucial. Obama has nominated two very competent individuals. He should continue cooperating with Leahy and Senate Majority Leader Harry Reid (D-Nev.) and their Republican counterparts to facilitate confirmation while nominating exceptional candidates for the two openings that lack nominees.

Obama also must keep working closely with California Democratic Senators Dianne Feinstein and Barbara Boxer. Both have established merit selection commissions, which solicit applications, interview candidates and make recommendations to the senators who in turn forward suggestions to the White House.

These efforts led Obama to nominate William Orrick III, Deputy Assistant Attorney General in the Civil Division of the U.S. Department of Justice, and Alameda County Superior Court Judge Jon Tigar for two vacancies on June 11, 2012. Both nominees earned the highest American Bar Association rating: unanimously well qualified. Orrick served in the Justice Department after working for a quarter century at San Francisco’s highly regarded Coblentz, Patch, Duffy & Bass law firm. Judge Tigar has served as a judge for a decade after litigating for eight years at The City’s respected Keker & Van Nest.

Senator Leahy promptly scheduled a July 11 hearing for both nominees at which Senators Feinstein and Boxer expressed their enthusiastic support. Then Senator Charles Grassley (R-Iowa) rigorously questioned each nominee, voicing concern about Orrick’s participation in Democratic Party politics, even as Grassley acknowledged that this activity should not disqualify him. On August 2, the Judiciary Committee approved Tigar on a voice vote and Orrick 12-6 with Republican Senators Jon Kyl (Ariz.) and Lindsey Graham (S.C.) voting yes.

Minority Leader McConnell must agree to votes on both nominees before the Senate adjourns because they are highly qualified and the Northern District desperately needs all 14 judges to effectively resolve its huge, complex caseload.

The four Northern District of California vacancies erode justice. President Obama must rapidly nominate candidates for the two remaining vacancies. The White House is not presently considering recommendations from the California senators, so the administration should encourage Feinstein and Boxer to quickly submit names. Once the President has nominated strong candidates, the Senate must expeditiously process them.

Carl Tobias is the Williams Chair in Law at the University of Richmond